Spanish Constitutional Court, 7 November 2007, Case No. 236/2007
Constitution of Spain
Article 10, paragraph 2
Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.
Article 96, paragraph 1
Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system. Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with general norms of international law.
Freedom of association
Use of international law as a guide for interpreting domestic law
Right to assembly/ Freedom of association/ Right to organize/ Use of international law as a guide for interpreting domestic law
The Parliament of Navarre lodged an appeal of unconstitutionality against various points of Organic Law 8/2000, including points 5, 6 and 9, which amend articles 7, 8 and 11 respectively of Organic Law 4/2000. Respectively, the aforementioned points restrict the exercise of the right to assembly, the right to freedom of association and the right to organize of foreigners, linking these rights to obtaining permits to stay or reside within Spain.
In its analysis of the claim regarding unconstitutionality, the Spanish Constitutional Court analysed whether the restrictions and limitations established by the legislator affected rights fundamental to guaranteeing human dignity based on the contents and nature of those rights as set out in the Spanish Constitution and international treaties ratified by Spain.
Referring to the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the European Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF), and international case law of the European Court of Human Rights, the Constitutional Court concluded that the right to assembly and freedom of association are linked to human dignity. Therefore, since they entirely excluded the exercise of these rights by foreigners who do not have stay or residence permits for Spain, the Court found that points 5 and 6 of Organic Law 8/2000 violated articles 21 and 22 of the Spanish Constitution related to the right to assembly and right to freedom of association, interpreted in accordance with the aforementioned international texts.
In relation to point 9, concerning the right to organize, the Court not only took into consideration the UDHR, ICCPR, CPHRFF, the International Covenant on Economic, Social and Cultural Rights and the European Social Charter but also made reference to ILO Conventions Nos. 87 and 98:
“Finally, mention must be made of two International Labour Organization (ILO) Conventions, both of which have been ratified and can be used as interpretive instruments in virtue of art. 10.2 EC (according to the contents of Case No. 191/1998 of 29 September, FJ 5): ILO Freedom of Association and Protection of the Right to Organise Convention (No. 87), which establishes in art. 2 that ‘workers [... ] without distinction whatsoever shall have the right to establish and [...] join organisations of their own choosing’; while the Right to Organise and Collective Bargaining Convention (No. 98) establishes in art. 1 that ‘workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment’”.4
The Court continued:
“In our examination of case law we have linked the right to organize to ‘all’ workers in their physical nature as opposed to their legal or formal status, and to ‘all’ unions [...] thereby understanding the subjective universal protection of this right given effect by the aforementioned international treaties, including ILO Convention No. 87 concerning the right to freedom of association and the protection of the right to organize [...]”.5
Thus, the Court also declared this point unconstitutional since it breached art. 28.1 of the Spanish Constitution on the right to freedom of association, interpreted in accordance with ILO Conventions on this right ratified by Spain.
In conclusion, making use of international law to interpret the provisions of the Constitution, the Constitutional Court of Spain established the unconstitutionality of the disputed precepts.
2 ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98); International Covenant on Civil and Political Rights, 1966; Convention for the Protection of Human Rights and Fundamental Freedoms – Council of Europe, 1950; International Covenant on Economic, Social and Cultural Rights, 1966; European Social Charter, 1961.